Washington
Pages | 599-618 |
599
CHAPTER 49
WASHINGTON
A. Scope of the Statute and Elements of a Cause of Action
Washington’s Consumer Protection Act (CPA)1 was enacted in 1961
and generally is accepted as the first state “Little FTC Act” to describe
prohibited conduct in substantially the same language as the FTC Act.2
The CPA declares unlawful “[u]nfair methods of competition and unfair
or deceptive acts or practices in the conduct of any trade or commerce.”3
The CPA is expressly intended to “complement” the body of existing
federal law that governs unfair competition and trade, restraints of trade,
and fraudulent acts and practices and provides that:
[i]t is the intent of the legislatu re that, in construing this act, the courts
be guided by final decisions of the federal courts and final orders of the
federal trade commission interpreting the various federal statutes dealing
with the same or similar matters and that in deciding whether conduct
restrains or monopolizes trade or commerce or may substantially lessen
competition, determination of the relevant market or effective area of
competition shall not be limited by the boundaries of the state of
Washington. To this end this act shall be liberally construed that its
beneficial purposes may be served.4
Although not required to do so, “Washington courts have uniformly
followed federal precedent in matters described under the Consumer
Protection Act” in practice.5
The CPA prohibits, but does not define, “unfair or deceptive acts or
practices.”6 The Washington Supreme Court confirmed that “unfair or
deceptive acts or practices” can be established in any one of three ways:
1. WASH. REV. CODE §§ 19.86.010 through 19.86.920.
2. See 1961 Wash. Sess. Laws 1956-64 (enacting the CPA).
3. WASH. REV. CODE § 19.86.020.
criminal penalties and is not therefore subject to the strict construction
requirement).
(quoting Blewett v. Abbott Labs., 938 P.2d 842, 846 (Wash. Ct. App.
1997)).
6. WASH. REV. CODE § 19.86.020.
600 State Consumer Protection Law
(1) a per se violation of statute; (2) an act or practice that has the capacity
to deceive substantial portions of the public; or (3) an unfair or deceptive
act or practice not regulated by statute but in violation of public interest.7
In addition to the general prohibitions set forth in section 19.86.020, a
violation of more than 120 other statutes also constitutes a per se unfair
practice under the CPA.8
Additionally, notwithstanding the CPA’s application to practices
“affecting the people of the state of Washington,” the Washington
Supreme Court held in Thornell v. Seattle Service Bureau9 that an out-of-
state consumer may bring a CPA claim against a W ashington
corporation.10 Additionally, an out-of-state consumer may bring a CPA
claim against an out-of-state entity based on acts committed by its in-state
agent.11 The Court explained that holding otherwise would allow dishonest
Washington companies to avoid CPA liability by targeting only out-of-
state consumers with unfair and deceptive practices.12 In turn, honest
businesses could be competitively disadvantaged against those generating
revenue from unlawful acts.13 Subsequently, the Ninth Circuit examined
the CPA’s out-of-state reach in Trader Joe’s Company v. Hallat,14 holding
that the CPA did not apply extraterritorially where the alleged deception
took place only in Canada, harmed only Canadian consumers, and did not
competitively disadvantage Washington businesses.15
Individuals may be personally liable for a CPA violation committed
by a business if the individuals participate in or approve the violating
conduct, even if there are no grounds for piercing the corporate veil.16
Consistent with the legislature’s intent that the CPA be liberally
construed,17 Washington courts have noted this directive ensures the
7. Young v. Toyota Motor Sales, U.S.A., 472 P.3d 990, 994 (Wash. 2020)
(quoting Klem v. Wash. Mut. Bank, 295 P.3d 1179, 1187 (Wash. 2013)).
8. See Hangman Ridge Training Stables, v. Safeco Title Ins. Co., 719 P.2d
531, 536 (Wash. 1986) (identifying numerous tie-in statutes). A number of
these statutes are cross-referenced throughout ch apter 19.86 of the
Washington Code. See, e.g., § 19.86.023 (cross-referencing § 15.8 6.030
regarding the labeling of organic foods).
9. 363 P.3d 587 (Wash. 2015).
10. Id. at 592.
11. Id.
12. Id. at 591.
13. Id.
14. 835 F.3d 960 (9th Cir. 2016).
15. Id. at 977.
16. State v. Arlene’s Flowers, Inc., 441 P.3d 1203, 1236-37 (Wash. 2019).
17. WASH. REV. CODE § 19.86.920.
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